Thomson v. Philips, 13755

• Decision Date: 24 May 1961
• Docket Number: No. 13755,13755
• Parties: Robert H. THOMSON et al., Appellants, v. Lois Eunice PHILIPS et al., Appellees.
• Court: Texas Court of Appeals

Page 832

347 S.W.2d 832

Robert H. THOMSON et al., Appellants, v. Lois Eunice PHILIPS et al., Appellees.

No. 13755.

Court of Civil Appeals of Texas, San Antonio.

May 24, 1961.

Rehearing Denied June 21, 1961.

Oliver & Oliver, Emmett J. Rahm, San Antonio, for appellants.

Trueheart, McMillan, Russell & Westbrook, Ralph E. Cadwallader, Bruce Waitz, Leslie J. Bretz, San Antonio, for appellees.

POPE, Justice.

Robert H. Thomson sued the National Bank of Commerce, independent executor and trustee of the Ella Thomson estate, and all of the named beneficiaries under Ella Thomson's will. Those beneficiaries are plaintiff's three children born of his marriage to Lois Eunice Thomson Philips. He also sued Melody Gay Thomson, his minor child born of a later marriage. He asked for removal of a cloud from the title to property which he claims as the sole heir of Ella Thomson. Plaintiff contends that the Ella Thomson will is void because it is in violation of the rule against perpetuities, and since it is void, the estate descended to her heirs. He claims that he is the sole heir by reason of his adoption by Ella Thomson and her husband, John Thomson. The minor, Melody Gay Thomson, had answered and, through a guardian ad litem, asserts rights in the Ella Thomson estate under a deed from her father, Robert H. Thomson, and, alternatively, under the terms of the Ella Thomson will. We shall separately discuss the claims of Robert H. Thomson and the minor, Melody Gay Thomson.

Robert H. Thomson's contention that he is the sole heir as the adopted child of Ella Thomson is immaterial to the decision of this case, inasmuch as Ella Thomson's will cut him off, if he be an heir. The validity of the Ella Thomson will is res judicata as to Robert H. Thomson. Ella Thomson died and her will was admitted to probate without contest in May, 1955. No suit to set the probate aside has ever been filed. In April, 1955, Robert H. Thomson's former wife, Lois Eunice, filed a suit to obtain a construction of the will. She sued the Bank, as executor and trustee, and all persons named as beneficiaries in the will. She also sued Robert H. Thomson, and he answered in that suit. On October 1, 1959, the District Court for the 131st Judicial District entered a final judgment construing the will, and from that judgment Robert Thomson did not appeal.

Robert H. Thomson and all other parties were in court for the purpose of discovering the intent and effect of the will. In the course of those proceedings he did not question the validity of the will. Under Rule 97(a), Texas Rules of Civil Procedure, Robert H. Thomson should then had asserted any counterclaim he may have had. 2 McDonald, Texas Civil Practice, Sec. 7.49. A party cannot litigate matters which he might have interposed, but failed to do, in a prior action between the same parties, or their privies, in reference to the same subject-matter. And if one of the parties failed to introduce matters for the consideration of the court that he might have done, he will be presumed to have waived his right to do so. Freeman v. McAninch 87 Tex. 132, 27 S.W. 97. The validity of the will is res judicata as to Robert H. Thomson and cannot here be litigated again. Bearden v. Texas Co., Tex.Com.App., 60 S.W.2d 1031; Ely v. Moore, Tex.Com.App., 11 S.W.2d 294; Lacy v. Carson Manor Hotel, Inc., Tex.Civ.App., 297 S.W.2d 367; accord, United States v. Eastport Steamship Corp., 2 Cir., 255 F.2d 795; United Artists Corp. v. Masterpiece Productions, 2 Cir., 221 F.2d 213, 216.

Melody Gay Thomson asserts rights to one-fourth of the Ella Thomson estate under a deed from her father. The showing on the motion for summary judgment is that Robert H. Thomson executed the deed on July 19, 1960, in place of a like deed which was lost. The lost deed was executed on October 1, 1959, immediately after the judgment was entered by the 131 District Court. That was the judgment to which Robert H. Thomson was a party and from which he made no appeal. It is res judicata as to him. Insofar as Melody's claim under this deed is concerned, she is in privity with her father. All persons are privies to a judgment whose succession to the rights of property thereby adjudicated was derived through or under one or the other of the parties to the action and accrued subsequent to the commencement of that action. Morrison v. Cloud, Tex.Civ.App., 13 S.W.2d 735, 737; Home Trading Co. v. Hicks, Tex.Civ.App., 296 S.W. 627, 630. Robert H. Thomson's deed to his daughter after the judgment, so far as her rights under the deed are concerned, does no more than make her successor to his title. As successor, she too is bound by the judgment, the effect of which is to hold that the Ella Thomson will is valid. Bussan v. Donald, Tex.Civ.App., 244 S.W.2d 271, 273.

Melody must recover, if at all, upon her alternative pleading that the will is valid and that she falls within the terms of that instrument. We now shall examine the will. There are several paragraphs in the will which are...